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Cite as: 30 BHRC 429, 54 EHRR 3, (2012) 54 EHRR 3, [2011] ECHR 2412, [2011] Eq LR 633, [2011] ELR 176
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GRAND CHAMBER
CASE OF LAUTSI AND OTHERS v. ITALY
(Application no. 30814/06)
JUDGMENT
STRASBOURG
18 March 2011
This judgment is final but may be subject to editorial revision.
In the case of Lautsi and Others v. Italy,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Jean-Paul
Costa,
President,
Christos
Rozakis,
Nicolas
Bratza,
Peer
Lorenzen,
Josep
Casadevall,
Giovanni
Bonello,
Nina
Vajić,
Rait
Maruste,
Anatoly
Kovler,
Sverre
Erik Jebens,
Päivi
Hirvelä,
Giorgio
Malinverni,
George
Nicolaou,
Ann
Power,
Zdravka
Kalaydjieva,
Mihai
Poalelungi,
Guido
Raimondi,
judges,
and Erik
Fribergh, Registrar,
Having deliberated in private on 30 June 2010 and on 16 February 2011,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, and the Republic of San Marino were also given leave to intervene collectively in the oral procedure.
There appeared before the Court:
(a) for the respondent Government
Mr Nicola
Lettieri, co-Agent,
Mr Giuseppe Albenzio, Adviser;
(b) for the applicants
Mr Nicolò
Paoletti, Counsel,
Ms Natalia Paoletti,
Ms Claudia
Sartori, Advisers;
(c) for the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, and the Republic of San Marino, third-party interveners:
Mr Joseph Weiler, Professor of Law, New York
University, Counsel,
Mr Stepan Kartashyan, Deputy Permanent
Representative
of Armenia to the Council of Europe,
Mr Andrey
Tehov, Ambassador, Permanent Representative
of Bulgaria to the
Council of Europe,
Mr Yannis Michilides, Deputy Permanent
Representative of Cyprus
to the Council of Europe,
Ms Vasileia
Pelekou, Deputy Permanent Representative of
Greece to the Council
of Europe,
Mr Darius Šimaitis, Deputy Permanent
Representative of
Lithuania to the Council of Europe,
Mr Joseph
Licari, Ambassador, Permanent Representative
of Malta to the
Council of Europe,
Mr Georgy Matyushkin, Government Agent
of the
Russian Federation,
Mr Guido Bellatti Ceccoli,
co-Agent of the Government
of the Republic of San
Marino, Advisers.
The Court heard addresses by Mr Nicolò Paoletti, Ms Natalia Paoletti, Mr Lettieri, Mr Albenzio and Mr Weiler.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
On 30 October 2003 the Minister joined the proceedings brought by the first applicant. He argued that her application was ill-founded since the presence of crucifixes in the classrooms of publicly run schools was based on Article 118 of royal decree no. 965 of 30 April 1924 (internal regulations of middle schools) and Article 119 of royal decree no. 1297 of 26 April 1928 (approval of the general regulations governing primary education; see paragraph 19 below).
Articles 159 and 190 make municipalities responsible for purchasing and supplying the furniture of primary and middle schools. Article 119 of the 1928 decree specifies that each classroom must have a crucifix and Article 118 of the 1924 decree that each classroom must have a portrait of the king and a crucifix. Article 676 of legislative decree no. 297 stipulates that provisions not included in the single text remain in force, “with the exception of provisions contrary to or incompatible with the single text, which are repealed”.
By a decision of 15 December 2004 (no. 389), the Constitutional Court declared the question as to constitutionality manifestly inadmissible, on the ground that it was in reality directed towards texts which, not having the status of law, but only that of regulations (the above-mentioned Articles 118 and 119), could not form the subject of a review of constitutionality.
“... 11.1. At this stage, the Court must observe, although it is aware that it is setting out along a rough and in places slippery path, that Christianity, and its older brother Judaism – at least since Moses and certainly in the Talmudic interpretation – have placed tolerance towards others and protection of human dignity at the centre of their faith.
Singularly, Christianity – for example through the well-known and often misunderstood “Render unto Caesar the things which are Caesar's, and unto ...” – through its strong emphasis placed on love for one's neighbour, and even more through the explicit predominance given to charity over faith itself, contains in substance those ideas of tolerance, equality and liberty which form the basis of the modern secular State, and of the Italian State in particular.
11.2 Looking beyond appearances makes it possible to discern a thread linking the Christian revolution of two thousand years ago to the affirmation in Europe of the right to liberty of the person and to the key elements in the Enlightenment (even though that movement, historically speaking, strongly opposed religion), namely the liberty and freedom of every person, the declaration of the rights of man, and ultimately the modern secular State. All the historic phenomena mentioned are based to a significant extent – though certainly not exclusively – on the Christian conception of the world. It has been observed – judiciously – that the rallying call “liberty, equality, fraternity” can easily be endorsed by a Christian, albeit with a clear emphasis on the third word.
In conclusion, it does not seem to be going too far to assert that, through the various twists and turns of European history, the secular nature of the modern State has been achieved at a high price, and was prompted in part, though of course not exclusively so, by a more or less conscious reference to the founding values of Christianity. That explains why in Europe and in Italy many jurists belonging to the Christian faith have featured among the strongest supporters of the secular State. ...
11.5 The link between Christianity and liberty implies a logical historical coherence which is not immediately obvious – like a river in a karst landscape which has only recently been explored, precisely because for most of its course it flows underground – partly because in the constantly changing relations between the States and Churches of Europe it is much easier to see the numerous attempts by the Churches to meddle in matters of State, and vice versa, just like the frequent occasions on which Christian ideals have been abandoned, though officially proclaimed, in the quest for power, or on which governments and religious authorities have clashed, sometimes violently.
11.6 Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.
11.7 By studying history carefully, from a suitable distance, not from up close, we can clearly perceive an affinity between (but not the identity of) the “hard core” of Christianity, which, placing charity above everything else, including faith, emphasises the acceptance of difference, and the “hard core” of the republican Constitution, which, in a spirit of solidarity, attaches value to the freedom of all, and therefore constitutes the legal guarantee of respect for others. The harmony remains, even though around those cores – both centred on human dignity – there have been numerous accretions of extraneous elements with the passage of time, some of them so thick as to obscure the core, particularly the core of Christianity. ...
11.9 It can therefore be contended that in the present-day social reality the crucifix should be regarded not only as a symbol of a historical and cultural development, and therefore of the identity of our people, but also as a symbol of a value system: liberty, equality, human dignity and religious toleration, and accordingly also of the secular nature of the State – principles which underpin our Constitution.
In other words, the constitutional principles of freedom have many roots, which undeniably include Christianity, in its very essence. It would therefore be something of a paradox to exclude a Christian sign from a public institution in the name of secularism, one of whose distant sources is precisely the Christian religion.
12.1 This court is admittedly not unaware of the fact that, in the past, other values have been attributed to the symbol of the crucifix, such as, at the time of the Albertine Statute, the sign of Catholicism understood as the State religion, and therefore used to Christianise and consolidate power and authority.
The court is well aware, moreover, that it is still possible today to give various interpretations of the sign of the cross, and above all a strictly religious meaning referring to Christianity in general and Catholicism in particular. It is also aware that some pupils attending State schools might freely and legitimately attribute to the cross values which are different again, such as the sign of an unacceptable preference for one religion in relation to others, or an infringement of individual freedom and accordingly of the secular nature of the State, or at the extreme limit a reference to temporal political control over a State religion, or the inquisition, or even a free catechism voucher tacitly distributed even to non-believers in an inappropriate place, or subliminal propaganda in favour of Christian creeds. Although all those points of view are respectable, they are ultimately irrelevant in the present case. ...
12.6 It must be emphasised that the symbol of the crucifix, thus understood, now possesses, through its references to the values of tolerance, a particular scope in consideration of the fact that at present Italian State schools are attended by numerous pupils from outside the European Union, to whom it is relatively important to transmit the principles of openness to diversity and the refusal of any form of fundamentalism – whether religious or secular – which permeate our system. Our era is marked by the ferment resulting from the meeting of different cultures with our own, and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity, even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity. ...
13.2 In fact, religious symbols in general imply a logical exclusion mechanism, as the point of departure of any religious faith is precisely the belief in a superior entity, which is why its adherents, the faithful, see themselves by definition and by conviction as part of the truth. Consequently, and inevitably, the attitude of the believer, faced with someone who does not believe, and who is therefore implicitly opposed to the supreme being, is an attitude of exclusion. ...
13.3 The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity – where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian. In Christianity even the faith in an omniscient god is secondary in relation to charity, meaning respect for one's fellow human beings. It follows that the rejection of a non-Christian by a Christian implies a radical negation of Christianity itself, a substantive abjuration; but that is not true of other religious faiths, for which such an attitude amounts at most to the infringement of an important precept.
13.4 The cross, as the symbol of Christianity, can therefore not exclude anyone without denying itself; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold. ...
14.1 It is hardly necessary to add that the sign of the cross in a classroom, when correctly understood, is not concerned with the freely held convictions of anyone, excludes no one and of course does not impose or prescribe anything, but merely implies, in the heart of the aims set for education and teaching in a publicly run school, a reflection – necessarily guided by the teaching staff – on Italian history and the common values of our society legally retranscribed in the Constitution, among which the secular nature of the State has pride of place. ...”
In its judgment (no. 556) dated 13 April 2006 the Consiglio di Stato gave the following reasoning:
“... the Constitutional Court has accepted on a number of occasions that secularism is a supreme principle of our constitutional order, capable of resolving certain questions of constitutional legitimacy (among numerous judgments, see those which concern the provisions relating to the compulsory nature of religious teaching in school or the jurisdiction of the courts over cases concerning the validity of marriages contracted according to canon law and recorded in the registers of marriages).
This is a principle which is not proclaimed in express terms in our Constitution, a principle which is rich with ideological resonances and has a history full of controversy, but one nevertheless which has a legal importance that can be deduced from the fundamental norms of our system. In reality the Court derives this principle specifically from Articles 2, 3, 7, 8, 19 and 20 of the Constitution.
The principle uses a linguistic symbol (“secularism”) which indicates in abridged form certain significant aspects of the above-mentioned provisions, the content of which established the operating conditions under which this symbol should be understood and function. If these specific operating conditions had not been established, the principle of “secularism” would remain confined to ideological conflicts and could be used only with difficulty in a legal framework.
In that framework, the operating conditions are of course determined by reference to the cultural traditions and the customs of each people, in so far as these traditions and customs are reflected in the legal order, and this differs from one nation to another. ...
In the context of this court and the problem placed before it, namely the legitimacy of displaying the crucifix in classrooms, on the part of the competent authorities acting pursuant to the regulations, what has to be done in practice is the simpler task of verifying whether that requirement does or does not infringe the content of the fundamental norms of our constitutional order, that give form and substance to the principle of “secularism” which now characterises the Italian State and to which the Constitutional Court has referred on a number of occasions.
Quite clearly, the crucifix is in itself a symbol that may have various meanings and serve various purposes, above all for the place in which it has been displayed.
In a place of worship the crucifix is properly and exclusively a “religious symbol”, since it is intended to foster respectful adherence to the founder of the Christian religion.
In a non-religious context like a school, used for the education of young people, the crucifix may still convey the above-mentioned values to believers, but for them and for non-believers its display is justified and possesses a non-discriminatory meaning from the religious point of view if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner (like any symbol) values which are important for civil society, in particular the values which underpin and inspire our constitutional order, the foundation of our civil life. In that sense the crucifix can perform – even in a “secular” perspective distinct from the religious perspective specific to it – a highly educational symbolic function, irrespective of the religion professed by the pupils.
Now it is obvious that in Italy the crucifix is capable of expressing, symbolically of course, but appropriately, the religious origin of those values – tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination – which characterise Italian civilisation.
Those values, which have pervaded traditions, a way of life, the culture of the Italian people, form the basis for and spring from the fundamental norms of our founding charter – contained in the “Fundamental Principles” and the first part – and especially from those which the Constitutional Court referred to and which delimit the form of secularism appropriate to the Italian State.
The reference, via the crucifix, to the religious origin of these values and their full and complete correspondence with Christian teachings accordingly makes plain the transcendent sources of the values concerned, without calling into question, rather indeed confirming the autonomy of the temporal power vis-à-vis the spiritual power (but not their opposition, implicit in an ideological interpretation of secularism which has no equivalent in the Constitution), and without taking anything away from their particular “secular” nature, adapted to the cultural context specific to the fundamental order of the Italian State and manifested by it. Those values are therefore experienced in civil society autonomously (and not contradictorily) in relation to religious society, so that they may be endorsed “secularly” by all, irrespective of adhesion to the creed which inspired and defended them.
As with any symbol, one can impose on or attribute to the crucifix various contrasting meanings; one can even deny its symbolic value and make it a simple trinket having artistic value at the most. However, a crucifix displayed in a classroom cannot be considered a trinket, a decorative feature, nor as an adjunct to worship. Rather, it should be seen as a symbol capable of reflecting the remarkable sources of the civil values referred to above, values which define secularism in the State's present legal order. ...”
II. DEVELOPMENT OF THE RELEVANT DOMESTIC LAW AND PRACTICE
In 1861, the year which saw the birth of the Italian State, the 1848 Statute of the Kingdom of Piedmont-Sardinia became the Constitution of the Kingdom of Italy; it provided in particular: “the Roman Catholic Apostolic religion shall be the only religion of the State [and] other existing creeds shall be tolerated in conformity with the law”.
For instance, on 22 November 1922 the Ministry of Education sent out a circular (no. 68) with the following wording: “... in the last few years in many of the Kingdom's primary schools the image of Christ and the portrait of the King have been removed. That is a manifest and intolerable breach of the regulations and especially an attack on the dominant religion of the State and the unity of the Nation. We therefore order all municipal administrative authorities in the Kingdom to restore, to those schools which lack them, the two sacred symbols of the faith and the consciousness of nationhood.”
On 30 April 1924 royal decree no. 965 of 30 April 1924 was adopted. This decree laid down the internal regulations governing middle schools (ordinamento interno delle giunte e dei regi istituti di istruzione media). Article 118 provided:
“Each school must have the national flag and each classroom must have a crucifix and a portrait of the King”.
Article 119 of royal decree no. 1297 of 26 April 1928, approving the general regulations governing the provision of primary education (approvazione del regolamento generale sui servizi dell'istruzione elementare), provides that the crucifix must form part of the “necessary equipment and supplies in school classrooms”.
“Italy recognizes and reaffirms the principle established in the first Article of the Italian Constitution dated March 4 1848, according to which the Roman Catholic Apostolic religion is the only State religion.”
Dealing in the present case with an application concerning the conformity of the presence of crucifixes in State-school classrooms with the principle of secularism, the Constitutional Court ruled that it did not have jurisdiction, since the texts which required the presence of the crucifix were only regulations (decision of 15 December 2004, no. 389; see paragraph 14 above). When called upon to examine this question, the Consiglio di Stato held that, regard being had to the meaning that should be attached to it, the presence of the crucifix in State-school classrooms was compatible with the principle of secularism (judgment of 13 February 2006, no. 556; see paragraph 16 above).
In a different case, the Court of Cassation had taken the contrary view to that of the Consiglio di Stato in the context of a prosecution for refusing to serve as a scrutineer in a polling station on the ground that a crucifix was displayed there. In its judgment of 1 March 2000 (no. 439), it held that the presence of the crucifix infringed the principles of secularism and the impartiality of the State, and the principle of the freedom of conscience of those who did not accept any allegiance to that symbol. It expressly rejected the argument that displaying the crucifix was justified in that it was the symbol of “an entire civilisation or the collective ethical conscience” and – here the Court of Cassation cited the terms used by the Consiglio di Stato in an opinion of 27 April 1988 (no. 63) – also symbolised “a universal value independent of any specific religious creed”.
“... The Minister
... Considering that the presence of crucifixes in classrooms is founded on the provisions in force, that it offends neither against religious pluralism nor against the objectives of multicultural education of Italian schools and that it cannot be considered a limitation of the freedom of conscience guaranteed by the Constitution, since it does not refer to a specific creed but constitutes only an expression of Christian civilisation and culture, and that it therefore forms part of the universal heritage of mankind;
Having assessed, with respect for different allegiances, convictions and beliefs, the desirability of requiring all schools, within the limits of their own autonomy and by decision of their competent collegiate organs, to set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish;
Issues the following instruction:
The Ministry's competent service ... shall take the necessary measures to see to it that:
1) school governors ensure the presence of crucifixes in classrooms;
2) all schools, within the limits of their own autonomy, and by decision of the members of their collegiate organs, set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish ...”.
Article 19
“Everyone is entitled to freely profess their religious beliefs in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided that they are not offensive to public morality.”
Article 33
“The Republic guarantees the freedom of the arts and sciences, which may be freely taught.
The Republic lays down general rules for education and establishes State schools of all branches and grades. ...”
Article 34
“Schools are open to everyone.
Elementary education, given for at least eight years, is compulsory and free. ...”
III. OVERVIEW OF LAW AND PRACTICE IN THE MEMBER STATES OF THE COUNCIL OF EUROPE WITH REGARD TO THE PRESENCE OF RELIGIOUS SYMBOLS IN STATE SCHOOLS
It is only expressly prescribed – in addition to Italy – in a few member States, namely: Austria, certain administrative regions of Germany (Länder) and Switzerland (communes), and Poland. Nevertheless, such symbols are found in the State schools of some member States where the question is not specifically regulated, such as Spain, Greece, Ireland, Malta, San Marino and Romania.
In Switzerland the Federal Court has held a communal ordinance prescribing the presence of crucifixes in primary school classrooms to be incompatible with the requirements of confessional neutrality enshrined in the Federal Constitution, but without criticising such a presence in other parts of the school premises (26 September 1990; ATF 116 1a 252).
In Germany the Federal Constitutional Court has ruled that a similar Bavarian ordinance was contrary to the principle of the State's neutrality and difficult to reconcile with the freedom of religion of children who were not Catholics (16 May 1995; BVerfGE 93,1). The Bavarian parliament then issued a new ordinance maintaining the previous measure, but enabling parents to cite their religious or secular convictions in challenging the presence of crucifixes in the classrooms attended by their children and introducing a mechanism whereby, if necessary, a compromise or a personalised solution could be reached.
In Poland the Ombudsman referred to the Constitutional Court an ordinance of 14 April 1992 issued by the Minister of Education prescribing in particular the possibility of displaying crucifixes in State-school classrooms. The Constitutional Court ruled that the measure was compatible with the freedom of conscience and religion and the principle of the separation of Church and State guaranteed by Article 82 of the Constitution, given that it did not make such display compulsory (20 April 1993; no. U 12/32).
In Romania the Supreme Court set aside a decision of the National Council for the Prevention of Discrimination of 21 November 2006 recommending to the Ministry of Education that it should regulate the question of the presence of religious symbols in publicly run educational establishments and, in particular, authorise the display of such symbols only during religious studies lessons or in rooms used for religious instruction. The Supreme Court held in particular that the decision to display such symbols in educational establishments should be a matter for the community formed by teachers, pupils and pupils' parents (11 June 2008; no. 2393).
In Spain the High Court of Justice of Castile and Leon, ruling in a case brought by an association militating in favour of secular schooling which had unsuccessfully requested the removal of religious symbols from schools, held that the schools concerned should remove them if they received an explicit request from the parents of a pupil (14 December 2009; no. 3250).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 AND ARTICLE 9 OF THE CONVENTION
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
They also contended that these facts infringed their right to the freedom of thought, conscience and religion enshrined in Article 9 of the Convention, which provides as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A. The Chamber's judgment
The Court went on to say that among the plurality of meanings the crucifix might have the religious meaning was predominant. It accordingly considered that the compulsory and highly visible presence of crucifixes in classrooms was capable not only of clashing with the secular convictions of the first applicant, whose children attended at that time a State school, but also of being emotionally disturbing for pupils of non-Christian religions or those who professed no religion. On that last point, the Chamber emphasised that the “negative” freedom of religion was not limited to the absence of religious services or religious education: it extended to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. It added that this “negative right” deserved special protection if it was the State which expressed a belief and dissenters were placed in a situation from which they could not extract themselves if not by making disproportionate efforts and sacrifices.
According to the Chamber, the State had a duty to uphold confessional neutrality in public education, where school attendance was compulsory regardless of religion, and which had to seek to inculcate in pupils the habit of critical thought. It observed in addition that it could not see how the display in State-school classrooms of a symbol that it was reasonable to associate with the majority religion in Italy could serve the educational pluralism which was essential for the preservation of “democratic society” within the Convention meaning of that term.
B. Arguments of the parties
1. The Government
That presence was the expression of a “national particularity”, characterised notably by close relations between the State, the people and Catholicism attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long-standing attachment to the values of Catholicism. Keeping crucifixes in schools was therefore a matter of preserving a centuries-old tradition. The Government argued that the right of parents to respect for their “family culture” ought not to infringe the community's right to transmit its culture or the right of children to discover it. Moreover, by contenting itself with a “potential risk” of emotional disturbance in finding a breach of the rights to education and freedom of thought, conscience and religion, the Chamber had considerably widened the scope of those provisions.
2. The applicants
Moreover, as the German Federal Constitutional Court had pointed out in its judgment of 16 May 1995 (see paragraph 28 above), giving the crucifix a profane meaning would move it away from its original meaning and help divest it of its sacred nature. As to the assertion that it was merely a “passive symbol”, this ignored the fact that like all symbols – and more than all others – it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible. The German Federal Constitutional Court had, moreover, made that finding, holding in the judgment cited above that the presence of crucifixes in classrooms had an evocative character in that it represented the content of the faith it symbolised and served as “publicity material” for it. Lastly, the applicants pointed out that in the Dahlab v. Switzerland decision of 15 February 2001 (no. 42393/98, ECHR 2001-V), the Court had noted the particular power that religious symbols exerted in the school environment.
C. Submissions of the third-party interveners
1. The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino
In their submission, favouring secularism was a political position that, whilst respectable, was not neutral. Accordingly, in the educational sphere a State that supported the secular as opposed to the religious was not being neutral. Similarly, removing crucifixes from classrooms where they had always been would not be devoid of educational consequences. In reality, whether the State opted to allow or prohibit the presence of crucifixes in classrooms, the important factor was the degree to which the curriculum contextualised and taught children tolerance and pluralism.
The intervening Governments acknowledged that there might be circumstances where the arrangements by the State were unacceptable. The burden of proof should remain on the individual, however, and the Court should intervene only in extreme cases.
2. The Government of the Principality of Monaco
3. The Government of Romania
4. The non-governmental organisation Greek Helsinki Monitor
5. The non-governmental organisation Associazione nazionale del libero Pensiero
6. The non-governmental organisation European Centre for Law and Justice
7. The non-governmental organisation Eurojuris
8. The non-governmental organisations International Commission of Jurists, Interights and Human Rights Watch
9. The non-governmental organisations Zentralkomitee der deutschen katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani
10. Thirty-three members of the European Parliament acting collectively
D. The Court's assessment
Thus it is not required in this case to examine the question of the presence of crucifixes in places other than State schools. Nor is it for the Court to rule on the compatibility of the presence of crucifixes in State-school classrooms with the principle of secularism as enshrined in Italian law.
1. The case of the first applicant
a. General principles
The complaint in question should therefore be examined mainly from the standpoint of the second sentence of Article 2 of Protocol No. 1 (see also Appel-Irrgang and Others v. Germany (dec.), no. 45216/07, ECHR 2009 ...).
In that connection, it should be pointed out that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups (see, for example, Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005 XI). That concerns both relations between believers and non-believers and relations between the adherents of various religions, faiths and beliefs.
Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching (see Bulski v. Poland (dec.), nos. 46254/99 and 31888/02).
According to those authorities, the setting and planning of the curriculum fall within the competence of the Contracting States. In principle it is not for the Court to rule on such questions, as the solutions may legitimately vary according to the country and the era.
In particular, the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum.
On the other hand, as its aim is to safeguard the possibility of pluralism in education, it requires the State, in exercising its functions with regard to education and teaching, to take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions. That is the limit that the States must not exceed (see judgments cited above in this paragraph, §§ 53, 84 (h) and 52 respectively).
b. Assessment of the facts of the case in the light of the above principles
It is true that a number of cases in which the Court has examined this provision concerned the content and implementation of the school curriculum. Nevertheless, as the Court has already emphasised, the obligation on Contracting States to respect the religious and philosophical convictions of parents does not apply only to the content of teaching and the way it is provided; it binds them “in the exercise” of all the “functions” – in the terms of the second sentence of Article 2 of Protocol No. 1 – which they assume in relation to education and teaching (see essentially Kjeldsen, Busk Madsen and Pedersen, cited above, § 50; Valsamis v. Greece, 18 December 1996, § 27, Reports of Judgments and Decisions 1996 VI; Hasan and Eylem Zengin, cited above, § 49; and Folgerø, cited above, § 84). That includes without any doubt the organisation of the school environment where domestic law attributes that function to the public authorities.
It is in that context that the presence of crucifixes in Italian State-school classrooms is to be placed (see Article 118 of royal decree no. 965 of 30 April 1924, Article 119 of royal decree no. 1297 of 26 April 1928 and Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 – paragraphs 14 and 19 above).
There is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed.
However, it is understandable that the first applicant might see in the display of crucifixes in the classrooms of the State school formerly attended by her children a lack of respect on the State's part for her right to ensure their education and teaching in conformity with her own philosophical convictions. Be that as it may, the applicant's subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No. 1.
As regards the Government's opinion on the meaning of the crucifix, the Court notes that the Consiglio di Stato and the Court of Cassation have diverging views in that regard and that the Constitutional Court has not given a ruling (see paragraphs 16 and 23 above). It is not for the Court to take a position regarding a domestic debate among domestic courts.
That applies to organisation of the school environment and to the setting and planning of the curriculum (as the Court has already pointed out: see essentially the judgments cited above in the cases of Kjeldsen, Busk Madsen and Pedersen, §§ 50-53; Folgerø, § 84; and Zengin, §§ 51-52; paragraph 62 above). The Court therefore has a duty in principle to respect the Contracting States' decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination (ibid.).
This margin of appreciation, however, goes hand in hand with European supervision (see, for example, mutatis mutandis, Leyla Şahin, cited above, § 110), the Court's task in the present case being to determine whether the limit mentioned in paragraph 69 above has been exceeded.
That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.
The Court refers on this point, mutatis mutandis, to the previously cited Folgerø and Zengin judgments. In the Folgerø case, in which it was called upon to examine the content of “Christianity, religion and philosophy” (KRL) lessons, it found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (see Folgerø, cited above, § 89). It reached a similar conclusion in the context of “religious culture and ethics” classes in Turkish schools, where the syllabus gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State's secular nature, Islam was the majority religion practised in Turkey (see Zengin, cited above, § 63).
The Grand Chamber does not agree with that approach. It considers that that decision cannot serve as a basis in this case because the facts of the two cases are entirely different.
It points out that the case of Dahlab concerned the measure prohibiting the applicant from wearing the Islamic headscarf while teaching, which was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law. After observing that the authorities had duly weighed the competing interests involved, the Court held, having regard above all to the tender age of the children for whom the applicant was responsible, that the authorities had not exceeded their margin of appreciation.
In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency, or claim that the second and third applicants had ever experienced a tendentious reference to that presence by a teacher in the exercise of his or her functions.
2. The case of the second and third applicants
However, it considers, for the reasons given in connection with its examination of the first applicant's case, that there has been no violation of Article 2 of Protocol No. 1 in respect of the second and third applicants. It further considers that no separate issue arises in the case under Article 9 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Proceeding on the assumption that the applicants wished to complain of discrimination regarding their enjoyment of the rights guaranteed by Article 9 of the Convention and Article 2 of Protocol No. 1 on account of the fact that they were not adherents of the Catholic religion and that the second and third of them had been exposed to the sight of crucifixes in the classrooms of the State school they attended, the Court does not see in those complaints any issue distinct from those it has already determined under Article 2 of Protocol No. 1. There is accordingly no cause to examine this part of the application.
FOR THESE REASONS, THE COURT
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 March 2011.
Erik Fribergh Jean-Paul Costa
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Judge Rozakis joined by Judge Vajić;
(b) Concurring opinion of Judge Bonello;
(c) Concurring opinion of Judge Power;
(d) Dissenting opinion of Judge Malinverni joined by Judge Kalaydjieva.
J.-P.C.
E.F.
CONCURRING OPINION OF JUDGE ROZAKIS JOINED
BY JUDGE
VAJIĆ
The main issue to be resolved in this case is the effect of the application of the proportionality test to the facts. Proportionality between, on the one hand, the right of parents to ensure their children's education and teaching in conformity with their own religious and philosophical convictions, and, on the other hand, the right or interest of at least a very large segment of society to display religious symbols as a manifestation of religion or belief. Consequently, both the competing values involved in this case are simultaneously protected by the Convention, through Article 2 of Protocol No. 1 (the lex specialis), read in the light of Article 9 of the Convention, in so far as the parents are concerned, and Article 9 of the Convention, in so far as society's rights are concerned.
Concerning, first, the parents' right, the Court's judgment underlines that the word “respect” in the second sentence of Article 2 of Protocol No. 1 “means more than 'acknowledge' or 'take into account'; in addition to a primarily negative obligation, it implies some positive obligation on the part of the State” (see paragraph 61 of the judgment). Yet the respect due to the parents, even in the form of some positive obligation, “does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum” (see paragraph 62).
This last reference to the Convention's case-law needs, I think, some further analysis. It is indisputable that Article 2 of Protocol No. 1 enshrines the fundamental right to education: a sacrosanct individual right – which undoubtedly can also be seen from the angle of a social right – that seems to be constantly gaining ground in our European societies. However, while the right to education constitutes one of the cornerstones of the protection of individuals under the Convention, the same cannot be said with equal force, to my mind, of the subordinate right of parents to ensure their children's education in accordance with their religious or philosophical beliefs. Here matters differ considerably, for a number of reasons:
(i) that right, although linked to the right to education, does not directly vest in the basic recipient of the right, namely, in the recipient of the education, that is, the one who has the right to be educated. It vests in the parents – whose direct right to education is not at stake in the circumstances – and is limited to one aspect of education alone: their religious and philosophical convictions.
(ii) although there is admittedly an obvious relationship between the education that children receive in their schools and the religious and philosophical ideas and opinions, deriving from convictions, which exist in the family environment – a relationship that requires a degree of harmonisation in these matters between the school and home environments – Europe has nevertheless changed dramatically regarding this aspect as well as others since Protocol No. 1 was adopted. Most of us now live in multicultural, multi-ethnic societies within our national States, a feature which has become a common characteristic of those societies, and children living in that environment are exposed, in their everyday life, to ideas and opinions which go beyond those emanating from school and their parents. Human relations outside the parental roof and modern means of communication undoubtedly contribute to that effect. As a consequence, children become accustomed to receiving a variety of frequently conflicting ideas and opinions and the role of both school and parents in these matters has become relatively less influential.
(iii) as a result of the changed composition of our societies, it is increasingly difficult for a State to cater for the individual needs of parents on educational issues. I would go as far as saying that its main concern, and this is a valid concern, should be to offer children an education which will ensure their fullest integration into the society in which they live and prepare them, in the best possible way, to cope effectively with the expectations that that society has of its members. Although this characteristic of education is not a new one – it has existed since time immemorial – it has recently acquired more obvious importance because of the particularities of our era and the composition of societies today. Again, the duties of the State have largely shifted from concerns of parents to concerns of society at large, thus reducing the extent of the parents' ability to determine, outside the home, the kind of education that their children receive.
In conclusion, it seems to me that, unlike other guarantees of the Convention, in respect of which the case-law of the Convention has increased the purview of protection, including the right to education, the right of parents, under the second sentence of Article 2 of Protocol No. 1, does not seem realistically to be gaining weight in the balancing exercise of the proportionality test.
At the other end of the spectrum, representing the other limb of the proportionality equation, lies the right of society, as reflected in the authorities' measure in maintaining crucifixes on the walls of State schools, to manifest their (majority) religious beliefs. Does this right, in the circumstances of the case, override the right of parents to educate their children in accordance with their religion and – more specifically in the circumstances of the present case – their philosophical convictions?
The answer should be given by interpreting the Convention case-law and applying it to the particular circumstances of this case. And the first question which must be settled is the issue of a European consensus. Is there any European consensus on the matter – allowing, imposing or prohibiting the display of Christian religious symbols in State schools – which should determine the position of the Court on the matter?
The answer emerges clearly from this very judgment of the Court, and from the part dealing with the overview of law and practice in the member States of the Council of Europe with regard to the presence of religious symbols in “State schools” (see paragraphs 26 et seq.): there is no consensus among European States prohibiting the presence of such religious symbols, and few States expressly forbid them. There is, of course, a growing trend towards proscribing the possibility of displaying crucifixes in State schools – mainly through rulings of the higher national courts – but the number of States that have adopted measures prohibiting the display of crucifixes in public places and the extent of domestic judicial activity do not allow the Court to presume that a consensus has been reached against displaying them. This is particularly true if one takes into account that there are a number of States in Europe where the Christian religion is still the official or predominant religion and, moreover, as I have just underscored, that a number of States clearly allow, through their law or practice, crucifixes to be displayed in public places.
It should be observed here, while we are on the subject of a consensus, that the Court is a court of law, not a legislative body. Whenever it embarks on a search for the limits of the Convention's protection, it carefully takes into consideration the existing degree of protection at the level of the European States; it can, of course, afford to develop that protection at a level higher than the one offered by a specific respondent State, but on condition that there are strong indications that a great number of other European States have already adopted that degree of protection, or that there is a clear trend towards an increased level of protection. That principle cannot positively apply in the present case, although there is admittedly an emerging trend towards prohibiting the display of religious symbols in public institutions.
In view of the fact that there is still a mixed practice among European States on the issue, the only remaining guidance for the Court in achieving the correct balance between the rights involved comes from its prior case-law. The keywords deriving from the prior case-law are “neutrality and impartiality”. As the Court has noted in the present judgment, “States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups” (see paragraph 60, in fine).
It is, I think, indisputable that the display of crucifixes in Italian State schools has a religious symbolism that has an impact on the obligation of neutrality and impartiality of the State, despite the fact that in a modern European society symbols seem to be gradually losing the very important weight that they used to have in the past and more pragmatic and rationalistic approaches now determine, for large segments of the population, the real social and ideological values.
The question which therefore arises at this juncture is whether the display of the crucifix not only affects neutrality and impartiality, which it clearly does, but whether the extent of the transgression justifies a finding of a violation of the Convention in the circumstances of the present case. Here I conclude, not without some hesitation, that it does not, in accordance with the main reasoning of the Court's approach and, more particularly, the role of the majority religion of Italian society (see paragraph 71), the essentially passive nature of the symbol, which cannot amount to indoctrination (see paragraph 72), and also the educational context within which the crucifix appears on the walls of State schools. As the judgment has pointed out, “[f]irstly, the presence of crucifixes is not associated with compulsory teaching about Christianity ... Secondly ... Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; ... and optional religious education could be organised in schools for 'all recognised religious creeds'...” (see paragraph 74 of the judgment). These elements, demonstrating a religious tolerance which is expressed through a liberal approach allowing all religions denominations to freely manifest their religious convictions in State schools, are, to my mind, a major factor in “neutralising” the symbolic importance of the presence of the crucifix in State schools.
I would also say that this same liberal approach serves the very concept of “neutrality”; it is the other side of the coin from, for example, a policy of prohibiting any religious symbols from being displayed in public places.
CONCURRING OPINION OF JUDGE BONELLO
What rights? Freedom of religion and conscience?
What rights? Right to education?
An aside
CONCURRING OPINION OF JUDGE POWER
This case raises issues as to the scope of certain provisions of the Convention and the Grand Chamber's rectification of a number of errors in the Chamber's Judgment was both necessary and appropriate. The core correction consists in the finding that the decision as to whether crucifixes should be present in state-school classrooms is, in principle, a matter falling within the margin of appreciation of a respondent state (§ 70). In exercising its supervisory role, the Court has confirmed its earlier case law1 to the effect that the 'preponderant visibility' within a school environment which a state may confer on a country's majority religion is not, in itself, sufficient to indicate a process of indoctrination such as would establish a breach of the requirements of Article 2 of Protocol No. 1 (§ 71).
The Grand Chamber has also corrected the rather speculative conclusion in the Chamber judgment (see § 55) as to the “particularly strong” risk of emotional disturbance which the presence of a crucifix may pose to children of minority religions or none. Given the critical role of “evidence” in any Court proceedings, the Grand Chamber has correctly noted that there was no evidence opened to the Court to indicate any influence which the presence of a religious symbol may have on school pupils (§ 66). While acknowledging as “understandable” the first applicant's perception of a lack of respect for her rights, the Grand Chamber has confirmed that her subjective perception is not sufficient to establish a breach of Article 2 of Protocol No 1. The first applicant may have taken offence at the presence of a crucifix in classrooms but the existence of a right 'not to be offended' has never been recognised within the Convention. In reversing the Chamber's judgment, the Grand Chamber does no more than confirm a body of settled jurisprudence (notably under Article 10) which recognises that mere 'offence' is not something against which an individual may be immunized by law.
However, there was another fundamental and, in my view, erroneous conclusion in the Chamber's Judgment upon which the Grand Chamber did not comment and which, to my mind, merited clarification. The Chamber referred, correctly, to the State's duty to uphold confessional neutrality in public education (§ 56). However, it proceeded, to conclude, incorrectly, that this duty required the effective preference or elevation of one ideology (or body of ideas) over all other religious and/or philosophical perspectives or world views. Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant's preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option. The Convention requires that respect be given to the first applicant's convictions insofar as the education and teaching of her children was concerned. It does not require a preferential option for and endorsement of those convictions over and above all others.
In his separate opinion, Judge Bonello has pointed to the fact that within the European tradition, education (and, to my mind, the values of human dignity, tolerance and respect for the individual, without which there can be no lasting basis for human rights protection) is rooted, historically, inter alia, within the Christian tradition. To prohibit in public schools, regardless of the wishes of the body politic, the display of a symbol representative of that (or indeed any other religious) tradition and to require of the State that it pursues not a pluralist but a secularist agenda, risks venturing towards the territory of intolerance – a concept that is contrary to the values of the Convention.
The applicants complain of an alleged violation of their rights to freedom of thought, conscience and religion. I can find no interference with their freedom to manifest their personal beliefs. The test of a violation under Article 9 is not “offence” but “coercion”.1 That article does not create a right not to be offended by the manifestation of the religious beliefs of others even where those beliefs are given 'preponderant visibility' by the State. The display of a religious symbol does not compel or coerce an individual to do or to refrain from doing anything. It does not require engagement in any activity though it may, conceivably, invite or stimulate discussion and an open exchange of views. It does not prevent an individual from following his or her own conscience nor does it make it unfeasible for such a person to manifest his or her own religious beliefs and ideas.
The Grand Chamber has found that the presence of the crucifix is, essentially, a passive symbol and it regards this point as being of great importance having regard to the principle of neutrality. I agree with the Court in this regard insofar as the symbol's passivity is not in any way coercive. However, I would have to concede that, in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner. The uncontested evidence before the Court is that Italy opens up the school environment to a variety of religions and there is no evidence of any intolerance shown towards non-believers or those who hold non-religious philosophical convictions. Islamic headscarves may be worn. The beginning and end of Ramadan are “often celebrated”. Within such a pluralist and religiously tolerant context, a Christian symbol on a classroom wall presents yet another and a different world view. The presentation of and engagement with different points of view is an intrinsic part of the educative process. It acts as a stimulus to dialogue. A truly pluralist education involves exposure to a variety of different ideas including those which are different from one's own. Dialogue becomes possible and, perhaps, is at its most meaningful where there is a genuine difference of opinion and an honest exchange of views. When pursued in a spirit of openness, curiosity, tolerance and respect, this encounter may lead towards greater clarity and vision as it fosters the development of critical thinking. Education would be diminished if children were not exposed to different perspectives on life and, in being so exposed, provided with the opportunity to learn the importance of respect for diversity.
DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KALAYDJIEVA
(Translation)
I have difficulty following that line of argument. Whilst the doctrine of the margin of appreciation may be useful, or indeed convenient, it is a tool that needs to be handled with care because the scope of that margin will depend on a great many factors: the right in issue, the seriousness of the infringement, the existence of a European consensus, etc. The Court has thus affirmed that “the scope of this margin of appreciation is not identical in each case but will vary according to the context ... . Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned”.1 The proper application of this theory will thus depend on the importance to be attached to each of these various factors. Where the Court decrees that the margin of appreciation is a narrow one, it will generally find a violation of the Convention; where it considers that the margin of appreciation is wide, the respondent State will usually be “acquitted”.
In the present case it is by relying mainly on the lack of any European consensus that the Grand Chamber has allowed itself to invoke the doctrine of the margin of appreciation (see paragraph 70). In that connection I would observe that, besides Italy, it is in only a very limited number of member States of the Council of Europe (Austria, Poland, certain regions of Germany (Länder) – see paragraph 27) that there is express provision for the presence of religious symbols in State schools. In the vast majority of the member States the question is not specifically regulated. On that basis I find it difficult, in such circumstances, to draw definite conclusions regarding a European consensus.
With regard to the regulations governing this question, I would point out in passing that the presence of crucifixes in Italian State schools has an extremely weak basis in law: a very old royal decree dating back to 1860, then a fascist circular of 1922, and then royal decrees of 1924 and 1928. These are therefore very old instruments, which, as they were not enacted by Parliament, are lacking in any democratic legitimacy.
What I find more important, however, is that where they have been required to give a ruling on the issue, the European supreme or constitutional courts have always, without exception, given precedence to the principle of State denominational neutrality: the German Constitutional Court, the Swiss Federal Court, the Polish Constitutional Court and, in a slightly different context, the Italian Court of Cassation (see paragraphs 28 and 23).
Be that as it may, one thing is certain: the doctrine of the margin of appreciation should not in any circumstances exempt the Court from the duty to exercise the function conferred on it under Article 19 of the Convention, which is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. Now, the wording of the second sentence of Article 2 of Protocol No. 1 confers a positive obligation on States to respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions.
That positive obligation derives from the verb “respect”, which appears in Article 2 of Protocol No. 1. As the Grand Chamber has rightly pointed out, “in addition to a primarily negative undertaking, this verb implies some positive obligation on the part of the State (see paragraph 61). Such a positive obligation can, moreover, also be inferred from Article 9 of the Convention. That provision can be interpreted as conferring on States a positive obligation to create a climate of tolerance and mutual respect among their population.
Can it be maintained that the States properly comply with that positive obligation where they mainly have regard to the beliefs held by the majority? Moreover, is the scope of the margin of appreciation the same where the national authorities are required to comply with a positive obligation and where they merely have to comply with an obligation of abstention? I do not think so. I incline, rather, to the view that where the States are bound by positive obligations their margin of appreciation is reduced.
In any event, according to the case-law, the margin of appreciation is subject to European supervision. The Court's task then consists in ensuring that the limit on the margin of appreciation has not been overstepped. In the present case, whilst acknowledging that by prescribing the presence of crucifixes in State-school classrooms the regulations confer on the country's majority religion preponderant visibility in the school environment, the Grand Chamber has taken the view that “that is not in itself sufficient, however, to ... establish a breach of the requirements of Article 2 of Protocol No. 1”. I cannot share that view.
The second sentence of Article 2 of Protocol No. 1 implies that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that knowledge is conveyed in an objective, critical and pluralistic manner. Schools should be a meeting place for different religions and philosophical convictions, in which pupils can acquire knowledge about their respective thoughts and traditions.
This view is shared by other both domestic and international bodies. Thus, in its General Comment No. 1, the United Nations Committee on the Rights of the Child has affirmed that the right to education refers “not only to the content of the curriculum, but also the educational processes, the pedagogical methods and the environment within which education takes place, whether it be the home, school, or elsewhere”4, and also that “the school environment itself must thus reflect the freedom and the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups”.5
The Supreme Court of Canada has also observed that the school environment is an integral part of discrimination-free education: “In order to ensure a discrimination-free educational environment, the school environment must be one where all are treated equally and all are encouraged to fully participate.”1
Thus, the Swiss Federal Court has found that the duty of denominational neutrality incumbent on the State is of special importance in State schools, where schooling is compulsory. It went on to say that, as guarantor of the denominational neutrality of the school system, the State could not, where teaching was concerned, manifest its own attachment to a particular religion, be it a majority or a minority one, because certain people may feel that their religious beliefs are impinged upon by the constant presence at school of the symbol of a religion to which they do not belong.3
In my view, the presence of the crucifix in classrooms goes well beyond the use of symbols in particular historical contexts. The Court has moreover held that the traditional nature, in the social and historical sense, of a text used by members of parliament when swearing loyalty did not deprive the oath to be sworn of its religious nature.4 As observed by the Chamber, negative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves.1 Even if it is accepted that the crucifix can have multiple meanings, the religious meaning still remains the predominant one. In the context of state education it is necessarily perceived as an integral part of the school environment and may even be considered as a powerful external symbol. I note, moreover, that even the Italian Court of Cassation rejected the argument that the crucifix symbolised values independent of a particular religious belief (see paragraph 67).
1. Justin Marozzi, The Man who Invented History, John Murray, 2009, p. 97.
2 Requiem for a nun, 1951.
1. Wikipedia classifies this work as “a pornographic novel” in which the author “explores all aspects of sexuality: sadism alternates with masochism; ondinism/scatophilia with vampirism; paedophilia with genrontophilia; masturbation with group sex; lesbianism with homosexuality ... the novel exudes an infernal joy”.
2. Akdaş v. Turkey, no. 41056/04, 16 February 2010.
1. See Folgerø and Others v. Norway [GC], no. 15472/02, § 89, ECHR 2007 VIII; see also Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 63, ECHR 2007 XI.
1. See Buscarini and Others v. San Marino [GC], no. 24645/94, ECHR 1999 I; see also the Supreme Holy Council of the Muslim Community v. Bulgaria, no. 39023/97, 16 December 2004.
1. Buckley v. the United Kingdom, 25 September 1996, § 74, Reports of Judgments and Decisions 1996 IV.
1. Manoussakis and Others v. Greece, 26 September 1996, § 47; Kokkinakis v. Greece, 25 May 1993, § 31.
2. Italian Constitutional Court, judgment no. 508/2000.
3. Folgerø and Others v. Norway, 29 June 2007, § 84. Our italics.
4 Committee on the Rights of the Child, General Comment No. 1, of 4 April 2001, “The Aims of Education”, para. 8. Our italics.
5 Idem, para. 19. Our italics.
1 Supreme Court of Canada, Ross v. New Brunswick School District no. 15, para. 100.
2. German Constitutional Court, BVerfGE 93, I I BvR 1097/91, judgment of 16 May 1995, § C (II) (1), non-official translation.
3 Swiss Federal Court, ATF 116 Ia 252, Comune di Cadro, judgment of 26 September 1990, § 7.
4. Buscarini and Others v. San Marino [GC], no. 24645/94, ECHR 1999 I.
1. Lautsi v. Italy, no. 30814/06, § 55, 3 November 2009.